2010 (1) TMI 273 - HC - Service Tax

Delay in appeal before CESTAT period of limitation condonation of delay - , the Tribunal dismissed an application for condoning delay of about 229 days in preferring the appeal, an appeal against the order in original passed by the Commissioner in terms of order dated 15-10- 2007 for getting over levy of tax under the provisions of the Finance Act, 1994 Held that . If the Tribunal has exercised its discretion for the purpose of condoning the delay in preferring an appeal and on taking into consideration the explanation offered by the petitioner/appellant and consciously holds that a case for condonation is not made out, which conclusion even in an view is not an unreasonable conclusion then in a matter like this we are very clear that in the exercise of an jurisdiction under Articles 226 and 227 of the Constitution of India, such an order cannot be quashed or set aside.

Issues:
1. Delay in preferring the appeal before the Tribunal under the Finance Act, 1994.
2. Justification for condoning the delay in filing the appeal.
3. Dispute regarding the service of notice of the passing of the order and the order itself.
4. Legitimacy of the Tribunal's decision to dismiss the application for condonation of delay and the subsequent appeal.
5. Jurisdiction of the High Court in entertaining the writ petition.

Delay in Preferring the Appeal:
The writ petition was filed by an assessee under the Finance Act, 1994, challenging the order of the Customs, Excise and Service Tax Appellate Tribunal dismissing an application for condoning a delay of about 229 days in preferring the appeal. The delay was attributed to the fact that the adjudication order had been served on a person who was no longer associated with the petitioner-company, leading to a delay in realizing the demand and filing the appeal.

Justification for Condoning the Delay:
The petitioner-company argued that the delay was due to the circumstances surrounding the service of the order and the unavailability of the person to whom the order was served. However, the Tribunal found the explanation insufficient to condone the delay, emphasizing that how the petitioner-company conducts its business is its own concern. The Tribunal concluded that the delay was not justified and dismissed the application for condonation of delay and the subsequent appeal.

Dispute Regarding Service of Notice:
The petitioner disputed the service of the notice of the passing of the order, claiming it was not properly served on the petitioner-company. The Tribunal, however, noted the acknowledgment of receipt by the person in charge of the company's affairs and found no merit in the argument that the service was improper, leading to the dismissal of the appeal.

Legitimacy of Tribunal's Decision:
The High Court reviewed the Tribunal's decision and upheld it, stating that the Tribunal was justified in not condoning the delay based on the explanations provided by the petitioner. The Court emphasized that ignorance of the order's existence and the circumstances surrounding the service were not sufficient reasons to justify the delay in filing the appeal.

Jurisdiction of the High Court:
The High Court dismissed the writ petition under Article 227 of the Constitution of India, highlighting that when there is an appellate provision available, like under the Central Excise Act, seldom a writ petition is entertained. The Court concluded that there was no ground to entertain the writ petition and advised the petitioner to pursue any statutory remedy available to them.

In conclusion, the High Court upheld the Tribunal's decision, emphasizing that the delay in filing the appeal was not justified, and dismissed the writ petition, directing the petitioner to explore other statutory remedies available to them.

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